JRs a 'headache' but a price worth paying in 'right circumstances'

Regulators should consider a third party review system of administrative decisions to ward off expensive judicial reviews, a new report has recommended.

City firm Devonshires' report draws on the third-party review system, introduced by the Architects Registration Board (ARB), which applies to challenges to the procedure used by two of the board's committees where there is no formal appeals procedure to the courts.

Applicants have 30 days to request a review and must identify where they believe procedures have not been followed or were inappropriate or inefficient. An independent lawyer conducts a paper-based review of the challenge following which and the committee decides whether to accept the lawyer's comments or recommendations.

James Dunn, a partner at Devonshires, said: "The use of independent lawyers in the ARB's 'JR-lite' process - which aims to pick up issues which could otherwise end up in court - appears an eminently sensible approach that we recommend other regulators should consider."

The recommendations evolved from a Devonshires roundtable which involved regulators from the legal, medical, surveying and financial sectors, as well as interviews with other regulators. Dunn commented: "The roundtable discussion showed the strides that many have taken to improve the transparency of their policy formation and decision-making, which ultimately form key planks in any defence to a judicial review that may emerge. This is surely an irreversible trend that is good for regulators and regulated alike.

"However, the most frustrating judicial reviews are those brought by individuals just trying to delay the inevitable in terms of a disciplinary outcome, and there is at the moment no obvious way of speeding up this process."

'Chilling effect'

Regulators who contributed to the report also expressed reservations regarding the government's current reform to judicial review which, while aimed at reducing the number of challenges to government decisions, will also impact those reviews involving regulators.

The roundtable heard that government plans for interveners to bear their own costs and also those costs arising to the parties from their intervention could act as a 'chilling effect' on the willingness of regulators to become involved in public interest litigation.

Dunn added: "This report provides a valuable review of the issues judicial review raises for regulators. The best regulators keep their processes under constant review as it is, but we would recommend that every three to five years there should be formal benchmarking against current best practice, informed as that would be by judicial reviews involving others. This special report itself shows how regulators from across different sectors can usefully learn from each other."

Devonshires' report concludes that judicial review is a price worth paying in the right circumstances to ensure that a regulator is doing its job properly and fairly.

'Deep injustice'

The government's proposals have already come under criticism from the legal profession, with the Law Society, Bar Counsel and the Chartered Institute of Legal Executives (CILEx) releasing a combined statement last week.

Meanwhile, The Times has published a letter from all of the Labour party's serving police and crime commissioners, including former MPs Tony Lloyd and Vera Baird QC, attacking the government's plans, which combined with the cuts to legal, create a "potentially deep injustice" which would "particularly affect the ability of individuals, small groups and charities" when they take on the state in the courts.

Commenting on the letter, shadow justice minister, Andy Slaughter, said: "This is just the latest in a series of significant interventions and attacks regarding the government's reckless proposals for judicial review. Chris Grayling should scrap these proposals before it is too late and his party further undermine the rule of law."

John van der Luit-Drummond is legal reporter for Solicitors Journal